Non-interest loan

No direct disadvantage for the creditors by repaying a non-interest-bearing loan.

In the late summer of 2002, the owner of the EES company applied for a loan of 200,000.00 from the Förderinstitut Mecklenburg-Vorpommern, which was paid in January 2003. The EE-GmbH had to assign a claim for an investment premium to secure the loan. The property of the EE GmbH lies exclusively with EE, the disinterested owner of the EES.

On 16 January 2003, the owner of EES transferred 20,000.00 from his company account to the bank account of EE-GmbH. The owner of EES filed for bankruptcy through his company on 31 March 2003. Bankruptcy proceedings were initiated on 31 March 2003. The assignment which EE GmbH received from the debtor in the insolvency complaint on 13 January 2003 will be reclaimed from the debtor’s son EE and EE-GmbH (“co-debtor”).

The customer is of the opinion that the payment to the EE GmbH took place without legal reason and represents a free service. They argued that on 16 February 2003 EE entered into a credit agreement with the debtor, his family man, as it needed short-term funds to settle the outstanding amounts.

Grant the loan to the borrower

In order to be able to grant the loan to the borrower, the EE had in turn taken up a company loan from Eure-GmbH, which had to be repaid to the EE-GmbH by the end of 2003. Due to the contested claim, the debtor has fully complied with the credit agreement. The insolvency administration has considered this appeal to be irrelevant and sued his descendants EE and EE-GmbH before the Schwerin district court.

He was unable to file a claim for return under bankruptcy law, as none of the possible grounds for resignation could be retained. A legal act taken by a debtor over the past ten years prior to the application to open insolvency proceedings with the intention of harming its creditors may be contested if the other party has known the intention of the debtor at the time of the act.

It remained unclear whether the fact sheet of the bankruptcy administrator is capable of proving the intention of the creditor to the detriment of its lenders, since in each case there is no sufficient submission of the bankruptcy administrator for the necessary knowledge of the EE and the EE GmbH. The assignment could not be objected to on the grounds that the debtor had concluded an interest-to-property contract with a person close to him, thereby directly penalizing the lenders.

In the EE-GmbH, this reason for revocation was not because the debtor had made no contract with her. The customer has concluded a loan agreement with his son EE. In it, the EE has committed to give the debtor an interest-free loan and the debtor has taken on the obligation to repay the loan. The present order was considered to be payable in the sense of the order of bankruptcy.

In order to assess whether the order is for financial interest, it is important that the debtor’s performance be balanced by appropriate remuneration. In the case of a non-interest-bearing loan, the lender’s obligation to provide the borrower and the borrower’s obligation to return the loan by the agreed date are in bilateral contractual terms.

In contrast to the gratuity, ie the abandonment of assets without remuneration, the non-interest-bearing loan is therefore also to be regarded as a remuneration contractual relationship. For the opportunity to contest, it is assumed that the lenders are directly damaged by the contract for a fee. Decisive here, however, was not the efficiency of the customer as such, but the substance of the closed contract.

A direct disadvantage of the creditor can therefore only be taken into account if the contract does not provide for a balanced performance on both sides, ie the creditor is more than he provides. This was not the case here, as the credit agreement only obliged the debtor to reimburse the amount previously made available to him.

Leave a Reply

Your email address will not be published. Required fields are marked *